ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

KEON ROSHUN JOHNSON,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR02-1210

SEPTEMBER 24, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION

NO. CR2001-3973,

HON. JOHN W. LANGSTON, JUDGE

AFFIRMED

Sam Bird, Judge

A Pulaski County jury convicted Keon Roshun Johnson of two counts of a terroristic act, a Class Y Felony. He received forty years' imprisonment on one count and fifteen years' imprisonment on the other count. The trial judge ran his sentences consecutively for a total of fifty-five years' imprisonment.

On appeal, Johnson raises two points for reversal. First, he contends that the trial judge erred in denying his motions for directed verdict because the State failed to introduce substantial evidence of his identity as the person who, as a principal or accomplice, committed the two counts of terroristic act. Second, he contends that the trial judge erred in denying his hearsay objection to the State's witness, Eddrick Childs, being permitted to repeat in court a statement that Childs testified was made to him by the now deceased victim, Danny Smith, that Johnson had shot him. We affirm.

Point One--Sufficiency of the Evidence

At trial, Johnson moved for a directed verdict, both at the close of the State's evidence and again at the close of all the evidence. He argued then, as he does now, that the State failed to present substantial evidence that he was the one who committed the two counts of terrorist act.1

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). For double jeopardy reasons, we first consider Johnson's sufficiency-of-the-evidence arguments. Id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Id.

The crime of terroristic act, a Class Y Felony, is defined in Ark. Code Ann. § 5-13-310 (Supp. 2001). The relevant portions of the statute are as follows:

There was evidence submitted at trial that early on the morning of August 31, 2001, Johnson, accompanied by an unidentified person, fired ten .30 caliber bullets into Danny Smith's apartment in Little Rock, thereby causing Mr. Smith's death and causing serious physical injury to Mr. Smith's friend, Eddrick Childs.

To prove Johnson's identity as the perpetrator of the terroristic act offenses, the State presented evidence that about five hours before the offenses occurred, Johnson and Smith got into a fight at Johnson's apartment, and that after the fight Johnson stated he was going to "get" Smith. The State also presented evidence that shortly after the fight, Johnson stated that he intended to kill Smith. Additionally, the State presented evidence that just before shots were fired into Smith's apartment, Johnson and another man were seen running toward Smith's apartment, and Johnson was seen carrying a gun. Furthermore, the State presented evidence that immediately after he had been shot, Smith stated to Eddrick Childs that Johnson had been the one who shot him. Finally, the State presented evidence that about twelve hours after Smith had been shot, Johnson called Smith's brother-in-law, Douglas Childs, and told Childs that he [Johnson] had "done" Smith and he was ready to "do" Childs next. Given the evidence presented by the State, we conclude that there was substantial evidence to support the convictions.

Point Two-Hearsay Objection  

At trial, Johnson objected on hearsay grounds to the testimony of Eddrick Childs regarding what Smith told Childs just shortly after both had been shot. Childs testified that after shots had been fired, Smith came into the same room he was in, holding his chest, and stated that County [Johnson] had shot him. Smith started choking almost immediately after making this statement, lay down, and died a short time later. The trial court overruled the objection after reviewing the hearsay exceptions found in the Arkansas Rules of Evidence, specifically Rules 804(B)(2)(statement under belief of impending death), 803(1)(present sense impression) and (2)(excited utterance).

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(c) (2003). There is no question that Childs's testimony regarding what Smith told him after the shooting was hearsay. The question is whether it falls within any of the exceptions to the hearsay rule. Johnson argues in his brief that none of the exceptions noted by the trial judge apply in this case. We disagree.

Arkansas Rule of Evidence 803(2) is the excited utterance exception to the hearsay rule. It states that an excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Given the testimony that Smith made this statement to Childs almost immediately after ten bullets were fired into Smith's apartment and given the fact that some of those bullets had hit Smith, we have no trouble in holding that this was a startling event and that Childs's statement is admissable under the excited utterance exception to the hearsay rule.

Affirmed.

Stroud, C.J., and Vaught, J., agree.

1 Johnson also argued at trial that the State failed to make a prima facie showing of serious physical injury to Eddrick Childs; however, Johnson does not make this argument on appeal.